2018 (10) TMI 2034 - SC - Indian Laws

Recovery of possession and arrears of rent - execution petition filed in the year 2006 is barred by limitation or not - the execution petition not filed within 12 years from the date of the judgment of the Trial Court - application of doctrine of merger in the context of a property possession and rent recovery suit - HELD THAT - A Three Judge Bench of this Court, in the case of CHANDI PRASAD ORS. VERSUS JAGDISH PRASAD ORS. 2004 (10) TMI 550 - SUPREME COURT , wherein it was observed that in terms of Article 136, Limitation Act 1963, a decree can be executed when it becomes enforceable. A decree is defined in Section 2(2) CPC, 1908 to mean the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. A decree within the meaning of Section 2(2) of the CPC would be enforceable irrespective of whether it is passed by the Trial Court, the First Appellate Court or the Second Appellate Court - When a higher forum entertains an appeal and passes an order on merit, the doctrine of merger would apply. The doctrine of merger is based on the principles of the propriety in the hierarchy of the justice delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject matter at a given point of time. Since the judgment of the Trial Court was affirmed by the First Appellate Court and was further affirmed by the Second Appellate Court, the decree passed by the High Court becomes enforceable in view of the doctrine of merger. Hence, the execution petition filed by the plantiffs/respondents is within time, consequently the appeal fails and stands dismissed.

Summary

Issues Involved:
The judgment involves the issue of the execution petition being barred by limitation and the application of the doctrine of merger in the context of a property possession and rent recovery suit.

Execution Petition Barred by Limitation:
The appellant argued that the execution petition filed in 2006 was time-barred as it was not initiated within 12 years from the Trial Court's judgment in 1981. The appellant contended that there was no interim order from the higher courts, so the respondents could have filed the execution petition earlier. However, the execution petition was filed within the limitation period from the High Court's judgment in 2003, making it timely.

Doctrine of Merger:
The judgment cited the case of Chandi Prasad v. Jagdish Prasad, (2004) 8 SCC 724, which clarified that a decree can be executed when it becomes enforceable, regardless of the court that passed it. The doctrine of merger applies when a higher court affirms a lower court's decision, making the decree enforceable. In this case, since the Trial Court's decision was upheld by the First and Second Appellate Courts, the High Court's decree was enforceable due to the doctrine of merger. Consequently, the execution petition filed by the respondents was deemed timely, leading to the dismissal of the appellant's appeal.